§ 163-182.2. Initial counting of official ballots.
Overview of Statute
Section stipulates the initial counting procedure of all official ballots.
(a) The initial counting of official ballots shall be conducted according to the following principles:
(1) Vote counting at the precinct shall occur immediately after the polls close and shall be continuous until completed.
(2) Vote counting at the precinct shall be conducted with the participation of precinct officials of all political parties then present. Vote counting at the county board of elections shall be conducted in the presence or under the supervision of board members of all political parties then present.
(3) Any member of the public wishing to witness the vote count at any level shall be allowed to do so. No witness shall interfere with the orderly counting of the official ballots. Witnesses shall not participate in the official counting of official ballots.
(4) If the county board of elections finds that an individual voting a provisional official ballot (i) was registered in the county as provided in G.S. 163-82.1, (ii) voted in the proper precinct under G.S. 163-55 and G.S. 163-57, and (iii) was otherwise eligible to vote, the provisional official ballots shall be counted by the county board of elections before the canvass. Except as provided in G.S. 163-82.15(e), if the county board finds that an individual voting a provisional official ballot (i) did not vote in the proper precinct under G.S. 163-55 and G.S. 163-57, (ii) is not registered in the county as provided in G.S. 163-82.1, or (iii) is otherwise not eligible to vote, the ballot shall not be counted. If a voter was properly registered to vote in the election by the county board, no mistake of an election official in giving the voter a ballot or in failing to comply with G.S. 163-82.15 or G.S. 163-166.11 shall serve to prevent the counting of the vote on any ballot item the voter was eligible by registration and qualified by residency to vote.
(5) Precinct officials shall provide a preliminary report of the vote counting on election day to the county board of elections as quickly as possible. The preliminary report shall be unofficial, has no binding effect upon the official county canvass to follow, and shall include the number of provisional ballots cast in that precinct.
(6) In counties that use any certified mechanical or electronic voting system, subject to the sample counts under G.S. 163-182.1 and subdivision (2) of subsection (b) of this section, and of a hand-to-eye recount under G.S. 163-182.7 and G.S. 163-182.7A, a board of elections shall rely in its canvass on the mechanical or electronic count of the vote rather than the full hand-to-eye count of the paper ballots or records. In the event of a material discrepancy between the electronic or mechanical count and a hand-to-eye count or recount, the hand-to-eye count or recount shall control, except where paper ballots or records have been lost or destroyed or where there is another reasonable basis to conclude that the hand-to-eye count is not the true count.
(b) The State Board of Elections shall promulgate rules for the initial counting of official ballots. All election officials shall be governed by those rules. In promulgating those rules, the State Board shall adhere to the following guidelines:
(1) For each voting system used, the rules shall specify the role of precinct officials and of the county board of elections in the initial counting of official ballots.
(2) For optical scan and direct record electronic voting systems, and for any other voting systems in which ballots are counted other than on paper by hand and eye, those rules shall provide for a sample hand-to-eye count of the paper ballots of a sampling of a statewide ballot item in every county. The presidential ballot item shall be the subject of the sampling in a presidential election. If there is no statewide ballot item, the State Board shall provide a process for selecting district or local ballot items to adequately sample the electorate. The State Board shall approve in an open meeting the procedure for randomly selecting the sample precincts for each election. The random selection of precincts for any county shall be done publicly after the initial count of election returns for that county is publicly released or 24 hours after the polls close on election day, whichever is earlier. The sample chosen by the State Board shall be of one or more full precincts, full counts of mailed absentee ballots, and full counts of one or more one-stop early voting sites. The size of the sample of each category shall be chosen to produce a statistically significant result and shall be chosen after consultation with a statistician. The actual units shall be chosen at random. In the event of a material discrepancy between the electronic or mechanical count and a hand-to-eye count, the hand-to-eye count shall control, except where paper ballots have been lost or destroyed or where there is another reasonable basis to conclude that the hand-to-eye count is not the true count. If the discrepancy between the hand-to-eye count and the mechanical or electronic count is significant, a complete hand-to-eye count shall be conducted. The sample count need not be done on election night.
(3) The rules shall provide for accurate unofficial reporting of the results from the precinct to the county board of elections with reasonable speed on the night of the election.
(4) The rules shall provide for the prompt and secure transmission of official ballots from the voting place to the county board of elections.
The State Board shall direct the county boards of elections in the application of the principles and rules in individual circumstances.
(2001-398, s. 3; 2005-2, s. 5; 2005-323, s. 5(b); 2006-192, s. 7(b); 2006-264, s. 76(c); 2013-381, ss. 30.6, 49.4; 2014-111, s. 12(c); 2015-103, s. 6(b); 2017-6, s. 3; 2018-146, s. 3.1(a), (b); 2020-17, s. 4.5(a).)
The enactment of subd. (a)(4) of this section, then § 163-182.2, as amended by S.L. 2013-381, § 49.4, was enjoined by order dated July 29, 2016 in North Carolina State Conference of NAACP v. McCrory, 831.F.3d 204, with the provision in effect prior to amendment by S.L. 2013-381, § 49.4, to be in full force. S.L. 2013-381, in the second sentence of (a)(4), substituted “precinct” for “election district”. Prior to being amended by S.L. 2013-381, subd. (a)(4) read:
“[(a)](4) Provisional official ballots shall be counted by the county board of elections before the canvass. If the county board finds that an individual voting a provisional official ballot is not eligible to vote in one or more ballot items on the official ballot, the board shall not count the official ballot in those ballot items, but shall count the official ballot in any ballot items for which the individual is eligible to vote. Eligibility shall be determined by whether the voter is registered in the election district as provided in G.S. 163-82.1 and whether the voter is qualified by residency to vote in the election district as provided in G.S. 163-55 and G.S. 163-57. If a voter was properly registered to vote in the election by the county board, no mistake of an election official in giving the voter a ballot or in failing to comply with G.S. 163-82.15 or G.S. 163-166.11 shall serve to prevent the counting of the vote on any ballot item the voter was eligible by registration and qualified by residency to vote.”
- Ballot Counting
1. Definition for individual
The term “individual” means a single individual or more than one individual.
2. Definition for Ballot item
“Ballot item” means a single item on a ballot in which the voters are to choose between or among the candidates or proposals listed.
3. Definition for Participate
Participate. – To take part in, influence, or attempt to influence, including
acting through an agent or proxy.
4. Definition for Voting place
“Voting place” means the building or area of the building that contains the voting enclosure.
5. Definition for Voting system
“Voting system” means a system of casting and tabulating ballots. The term includes systems of paper ballots counted by hand as well as systems utilizing mechanical and electronic voting equipment. (2001-460, s. 3; 2001-466, s. 3(a), (b); 2002-159, s. 21(h); 2006-262, s. 4; 2013-381, ss. 30.1, 30.2; 2015-103, ss. 4(a), 5(a), 6(b); 2017-6, s. 3.)
6. Definition for Official ballot
“Official ballot” means a ballot that has been certified by the State Board of Elections and produced by or with the approval of the county board of elections. The term does not include a sample ballot or a specimen ballot.
7. Definition for Provisional official ballot
“Provisional official ballot” means an official ballot that is voted and then placed in an envelope that contains an affidavit signed by the voter certifying identity and eligibility to vote. Except for its envelope, a provisional official ballot shall not be marked to make it identifiable to the voter.
8. Definition for day
The term “day” means calendar day.
9. Definition for board
The term “board” means the State Board with respect to all candidates for State, legislative, and judicial offices and the county board of elections with respect to all candidates for county and municipal offices. The term means the State Board with respect to all statewide referenda and the county board of elections conducting all local referenda.
10. Definition for Board
Board. – Any State board, commission, council, committee, task force,
authority, or similar public body, however denominated, created by statute or
executive order, as determined and designated by the State Board, except for
those public bodies that have only advisory authority.
11. Definition for State
“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
12. Definition for Ballot
(Effective until January 1, 2018 or September 1, 2019 – see note) “Ballot” means an instrument on which a voter indicates that voter’s choice for a ballot item so that it may be recorded as a vote for or against a certain candidate or referendum proposal. The term “ballot” may include a paper ballot to be counted by hand, a paper ballot to be counted on an electronic
scanner, the face of a lever voting machine, the image on a direct record electronic unit, or a ballot used on any other voting system.
(Effective January 1, 2018 or September 1, 2019 – see note) “Ballot” means an instrument on which a voter indicates that voter’s choice for a ballot item so that it may be recorded as a vote for or against a certain candidate or referendum proposal, and is evidenced by an individual paper document that bears marks made by the voter by hand or through electronic
means, whether preprinted or printed in the voting enclosure.
13. Definition for election
The term “election” means any general or special election, a first or second primary, a run-off election, or an election to fill a vacancy. The term “election” shall not include any local or statewide referendum.
14. Definition for Election
“Election” means the event in which voters cast votes in ballot items concerning proposals or candidates for office in this State or the United States. The term includes primaries, general elections, referenda, and special elections.
North Carolina Cases
Case Name: North Carolina State Conference of NAACP v. McCrory
Citation: 997 F.Supp.2d 322
Federal Circuit Court: 4th Circuit Court
Case PDF: NAACPvMcCrory
Case Summary: Various civil rights organizations failed to make clear showing that they were likely to be irreparably harmed by the North Carolina omnibus election reform law provisions calling for increased poll observers, allowing voters to challenge ballots, eliminating discretion to keep polls open, and precluding preliminary injunction to enjoin implementation of these provisions on their equal protection and twenty-sixth amendment challenges. Specifically the voters brought challenge to early registration cutoff under the Anderson-Burdick balancing test, as it applies to state election procedures. Under thus judicial precedent, the court held no matter how slight the voters burden may appear, it must be justified by relevant and legitimate state interests need sufficient weight to justify the limitation. Here the slight burden imposed by the 25-day cut-off is more than justified by the State's important interest in detecting fraud and ensuring that only properly verified voters have their votes counted at the canvass. Therefore, the Plaintiff's concerns regarding election threats to voting rights did not support a conclusion that additional poll observers and additional measures needed to be taken by the State Board of Elections and their motion to preliminarily enjoin SL 2013-381's elimination of SDR on such basis shall be denied. The United States, various African-American individuals, churches, and civil rights organizations failed to meet their burden in showing of discriminatory intent and thus will not succeed on the merits of their claim that North Carolina omnibus election law provision which eliminated out-of-precinct provisional voting violated the Voting Rights Act (VRA) section prohibiting race or color-based qualifications or prerequisites for voting. Nor did individual young voters present sufficient evidence that they were likely to suffer irreparable harm before trial pursuant to their Twenty-Sixth Amendment challenge to North Carolina’s omnibus election provision as any 17-year-old who would be 18 by election day was able to register even under the challenged provision. Further challenges that the provision eliminating the pre-registration program of 16- and 17-year-olds did not discriminate against young voters nor place targeted hardship on grounds that they would have to expend greater resources to vote, thus was not sufficiently particularized to confer standing as any of the state's 6.5 million registered voters would have had standing to such challenge. Accordingly, without evidence of financial harm or a direct legally congnizable injury, the group of young voters failed to allege a sufficient claim under the Twenty-Sixth Amendment challenges. In conclusion, the manner of proceedings in North Carolina's General Assembly leading up to enactment of an omnibus election reform act provision eliminating same-day registration did not raise strong inferences of discriminatory intent required to support these challenges asserted by the United States and various African-American individuals, churches, and civil rights organizations under the Voting Rights Act which prohibits race- or color-based qualifications or prerequisites for voting.